Obama's Secrets: A Different Standard, Or A Different Emphasis?

The Obama administration's new state secrets privilege policy makes it harder, in theory, for the Justice Department to invoke the doctrine, while leaving the privilege intact -- and, in a way, fortifying it for use in the future. So far, the loudest objection to the policy, which was announced this morning, is that the administration refuses to apply the new rules to ongoing or legacy litigation, which leaves them defending assertions of the privilege that don't meet their current standards.

According to policy analysts, the biggest change is the department's voluntary decision to adopt a "significant harm" standard for each privilege assertion. Current case law provides little guidance here, which has given implicit permission to the executive branch to invoke the privilege when the harm to national security would be only slight. In practice, if the administration sticks to its guns, the number of future cases that involve an assertion of the privilege would decline significantly.

"It's a matter of emphasis and policy means, not a fixed rule," a senior Justice Department official who drafted the policy acknowledged in an interview. The official agreed to discuss the application of the privilege and provided new details on the condition of anonymity. A White House spokesman said President Obama has reviewed and endorsed the new guidelines.

During the presidential campaign and in April of 2009, Obama said the privilege ought to be "modified."  I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake and that you can't litigate without revealing covert activities or classified information that would genuinely compromise our safety.

But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it's not such a blunt instrument.

From the department's perspective, agencies like the CIA, NSA or FBI, who want the department to use the privilege, will have to make a strong case to senior officials, including the Attorney General. The internal standard for asserting the privilege will be codified to include the development of a "strong evidentiary submission" to a judge. If the evidence involves wrongdoing or allegations of illegality, the department promises to refer the allegation to the appropriate agency inspectors general as a way to build in some accountability. Congress will be briefed regularly on the privilege's invocation, though it is not clear how much detail will be provided. And from the administration's perspective, the policy does not broaden the latitude for judges to determine what constitutes a national security fact.

The policy departs from House and Senate reform bills, including one that Vice President Joe Biden signed onto when he was a senator, in several ways. Both the House and Senate bills encourage judges to make evidentiary determinations after the opposing side has had the chance to contest them in court. But the government's policy makes it clear that the Justice Department reserves the right to insist on ex parte hearings -- that is, before any party but the government has had the chance to review the evidence. And while the House bill directs judges not to give the executive branch any deference to its views about the relative harm that providing the evidence might cause, the new policy assumes that the executive branch ought to be deferred to.

The department official disclosed that the administration has revised the way it litigates current cases and no longer argues that it has the unequivocal right to shut down cases before the discovery phase, but the official acknowledged that there may be "very unusual cases" where the state secrets doctrine would be used for that purpose.

The policy doesn't contain a new rule that address a situation where a judge might not be satisfied with the department's evidentiary submission. "We are comfortable with the idea that when the courts make requests like that, that there are those requests where we're going to find it to be appriopriate [to provide more information]. In the case of, say, an intelligence informant, the judge might request to know the specific indentity of that person -- and if the classifying agency refuses to disclose the information, the administration acknowledges that the agency in question will deal with whatever sanctions are imposed.

"The norm is that we're going to be responsive to the judiciary," the official said.

Reaction by congressional Democratic critics of the privilege has been cautious. "Today's announcement marks progress," said Sen. Patrick Leahy (D-VT), the chairman of the Judiciary Committee. But, he said, "I remain especially concerned with ensuring that the government make a substantial evidentiary showing to a federal judge in asserting the privilege, and I hope the administration and the Department of Justice will continue to work with Congress to establish this requirement."

Robert Chesney, a University of Texas law professor who has studied the doctrine and who was a consultant to the Justice Department on unrelated matters until July, said in an interview that the new policy "might suck some of the wind out of the legislation. 

"My sense is that this addresses many of the concerns that were driving support for the legislation," Chesney said. "The bills would do additional things, to be sure, such as compelling the government to allow a party's attorney to have access to the secret information in question before the judge has determined whether it is protected by the privilege. Some of those additional features would likely generate opposition from the administration, though, not to mention constitutional challenges. There probably won't be enough interest in Congress to try to push through those more controversial features now that the administration has voluntarily accepted these other restraints," he supposes.

(Chesney has just published a review of the executive branch's control of national security information.)

Ken Gude, a senior fellow at the Center for American Progress who has been a critic of the privilege, called the policy a "big improvement." He said he remains concerned about the possibility of dismissing cases before the discovery phase. "I understand that there may be instances when it's not possible to go forward without certain evidence, but a judge should make that decision after plaintiffs have had a chance to plead their case without it."

Gary Bass, president of OMB Watch, a government secrecy watchdog group, called the policy "the latest in a series of decisions by the administration to make the government more open and accountable." Civil liberties bloggers don't see much difference between this policy and the Bush administration's policy. "The new policy seems to formalize the process by which we got the results that had civil liberties groups crying foul in the first place," writes Adam Serwer on the American Prospect's TAPPED blog. Glenn Greenwald of Salon calls it a "self evident farce."